In the recent case of MA v. Alberta College of Pharmacy, 2023 ABKB 522 (MA), the Court of King’s Bench of Alberta (ABKB) considered two issues: i) whether the Applicant’s appeal and stay application were premature, and if not premature, ii) whether the Court should grant a stay pending the appeal of the Merits Decision to the Council of the College. The ABKB ruled that an application to court was appropriate prior to sanctions being decided by a Hearing Committee.
Background and judicial history
Professional disciplinary matters commonly include a bifurcated process. First, a Merits Hearing determines whether the Applicant committed unprofessional conduct. If the applicant was found to have committed unprofessional conduct, a Sanctions Hearing follows.
In this case, the Applicant is a registered pharmacist in Alberta in a disciplinary proceeding with the Alberta College of Pharmacy (College) relating to allegations of engaging in consensual sexual intercourse with a patient. The Merits Hearing found the Applicant committed sexual abuse (Merits Decisions) under the Health Professions Act, RSA 2000, c H-7 (HPA) and the College’s Standards of Practice- Sexual abuse and sexual misconduct (Standards). The Applicant’s practice permit was immediately suspended pursuant to section 81.1(1) of the HPA. The Sanctions Hearing has not yet taken place, and is currently in progress by written submissions.
The Applicant appealed the Merits Decision to the Council of the College under section 87 of the HPA, requesting a stay of the mandatory suspension under section 86. The Appeal Panel of the Council of the College (the Council) and a Stay Committee of the Council both cited that the Applicant did not have a right of appeal until the sanctions phase was completed; thus, the application was premature.
Court of King’s Bench of Alberta analysis
Under section 83(3) of HPA, a person may apply to the Court of King’s Bench for a stay of the decision of the hearing tribunal pending an appeal to the council. This is specifically when a council decides not to stay the decision of the hearing tribunal, or does not make a decision within 10 days of the application.
This application considered whether the Council properly declined the appeal and properly refused to consider the stay application.Such question of law is assessed on the correctness standards.[1] The reasonableness standards do not apply where courts and administrative bodies have concurrent first instance jurisdiction over a legal issue in a statute.[2]
The Court noted that the “bifurcated appeal provides flexibility and enhances fairness to those subject to discipline proceedings.”[3] The language, object, purpose or context of HPA does not indicate that the legislature intended to eliminate all risk of bifurcated appeals at the cost of fundamental fairness to the subject of the proceeding.
The ABKB rejected the idea that the legislature intended for only one appeal in each discipline matter. An appeal is available for the outcome of each of the Merits Hearing and the Sanction Hearing. Therefore, the Applicant’s appeal was not premature.
The test for a stay pending appeal requires that “there is a serious question to be determined on appeal, that the applicant will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting the stay.”[4]
In the interest of justice and balancing the harm to the Applicant, public safety and to the reputation of the profession, the Court held that it can be best accommodated by granting a stay of the suspension order pending appeal to the Council.
Conclusion
Regulatory colleges operating under HPA must recognize an applicant’s right of appeal lies from each of the merits and sanctions hearings. In this case, the appeal committee erred in law in finding that the Applicant did not have a right of appeal. The Stay Committee erred in law in refusing to consider the Applicant’s stay application. Consequently, the ABKB granted a stay under section 83 HPA, which is to expire upon the Council issuing its decision on the appeal of the Merits Decision.
For more information on this topic, please reach out to the authors, Rose Carter and Kate Millar.
[1] MA v. Alberta College of Pharmacy, 2023 ABKB 522 at para 36 (MA).
[2] Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30 (CanLII), at para 28.
[3] MA, supra at para 48.
[4] Denis v Sauvageau, 2022 ABCA 166 at para 17.
